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Sunset in Tokelau. The island's executive council made an application to the NZ court, fearing the child would be taken away from the islands. Photo / NZME
A New Zealand court has intervened in a custody dispute involving a 4-year-old girl, her parents living in Australia and extended family members in Tokelau.
The court became involved after the girl’s mother, assisted by another relative, boarded a ship at the Tokelauan atoll of Atafu this month, and “wrestled” the child from her paternal grandmother, with whom she had been living.
The crew of the MV Kalopaga had earlier been warned by radio not to get involved in an “incident” which was about to happen on the ship, according to a judgment by New Zealand High Court Justice Matthew Palmer.
Tokelau is a dependent territory of New Zealand in the Pacific Ocean, about 3400km from Auckland.
Justice Palmer heard the case about the girl, whose identity is suppressed, as a High Court of New Zealand judge sitting as the High Court of Tokelau.
He was acting on an urgent application made by the island state’s executive body, the Council for the Ongoing Government of Tokelau, for the girl to be made a ward of the court.
Council members said that the application was “unprecedented” but they feared that the girl would be taken out of Tokelau.
In submissions to the court, the council said: “It is the sincere wish of the council that this unfortunate family law dispute between the families be resolved using time-honoured Tokelauan culture and custom”.
The child’s birth mother and father are not in a relationship and live in Australia, where she was born.
After her birth, there was an agreement that the girl’s paternal grandmother would look after the child in Tokelau.
This month, the grandmother and child boarded the cargo ship Kalopaga for Samoa, from where it was intended she would fly to Australia with her father to attend a Family Court hearing in New South Wales.
The hearing was scheduled to determine child support, a name change and parenting orders.
On November 5, the Kalopaga stopped at Atafu, where the mother was waiting on another ship, the Mataliki.
Justice Palmer said the evidence before him was that the mother was picked up from the Mataliki by barge and taken to and boarded the Kalopaga, accompanied by a male relative.
“After a struggle, the [male relative] wrestled the child away from the grandmother and gave her to the mother, who took her on the barge to Atafu,” he said.
At the time the case was heard, the mother and child, and the grandmother separately, remained in quarantine on Atafu under Tokelau’s continuing strict Covid-19 protocols.
Justice Palmer issued an order making the child a ward of the court.
He gave the island state’s Minister of Education, Elihi Kelihiano Kalolo, authority to make all necessary decisions regarding her guardianship and care.
“I was particularly mindful of the minister’s intention to restore the child to the care of her paternal grandmother,” Justice Palmer said.
“That is the situation she has been in for all but six months of her life.
“The evidence before me is that that situation is in her best interests, while the current dispute is sorted out.”
The judge ordered Kalolo to provide regular written reports on the child – within 28 days and every three months after that.
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NZ court makes child its ward until custody is sorted out under Tokelauan custom.

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